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Last week, the New York Supreme Court, Suffolk County, denied an application for a preliminary injunction to enjoin the completion, maintenance and operation of two sixty-foot tall electronic billboard-monuments (“Project”) on opposite sides of State Route 27 a.k.a. Sunrise Highway, which Project is owned by the Shinnecock Indian Nation (“Nation”).

 

A.  The Project and the State’s Action

In or about the spring of 2019, the Project’s construction began. In late May 2019, the State of New York (“State”) commenced an action against various defendants in Commissioner of the State of New York Department of Transportation, et al. v. Polite, Index No. 610010/2019 [Sup Ct., Suffolk Co., May 18, 2020], seeking to prohibit the Project. The State claims, among other things, that the land upon which the Project is situated is not part of the Shinnecock Indian Reservation, is not aboriginal or sovereign land, and is within the State’s right-of-way; therefore, the State has jurisdiction over any structures placed therein.

B.  The Court’s Previous Order Temporarily Restraining the Project

By Order to Show Cause issued May 24, 2019, the Court “stayed” the defendants and all those acting on their behalf from conducting any activities relating to the construction, maintenance or operation of the Project – pending a hearing on the State’s application for a preliminary injunction. Since then, and despite the temporary restraining order, construction of the Project continued and at least part of it has been completed and is operational.

C.  The Court Denies the Preliminary Injunction

In order to obtain a preliminary injunction, the movant must demonstrate (i) a likelihood of success on the merits, (ii) irreparable injury absent the granting of the preliminary injunction, and (iii) the equities balance in its favor. The Court held that the State failed to meet its burden of proof for a preliminary injunction.

1.  Likelihood of Success

With respect to a likelihood of success on the merits and the status of the subject land, the Court noted the State’s “showing largely relies on the outcome of inconclusive prior litigation between the State and the [Shinnecock] Nation, and others in federal court.” In particular, the State relied upon a decision of the United State District Court for the Eastern District of New York addressing proposed gaming casinos, and which granted a permanent injunction; that decision, however, was vacated on appeal.

The Court found that the State’s allegation that the subject land is not aboriginal or sovereign is subject to dispute, and that it is undisputed that the Nation’s ancestral domain encompassed essentially the entirety of what is now the Town of Southampton, which presence has been continuous. “Ultimately, the burden will be upon the State . . . to refute the defendants’ contention that the Nation has sovereign control over the [subject property]. On the current record, it is impossible to conclude that the [State] will succeed in doing so.” The Court also noted that the defendants continue to challenge the validity and effectiveness of the instruments which support the State’s case.

2.  Irreparable Harm and Balancing the Equities

With respect to irreparable harm, the Court held that the Project’s electronic displays do not pose the disruptive consequences attributed to gaming, and the Project does not pose an unacceptable safety risk because it is being built to engineering standards. And, in balancing the equities, the Court found the advertising revenue from the Project represents an important source of income for the Nation.

The Court concluded “it is of the view that a preliminary injunction preventing operation of the [Project] is unwarranted, that the [State] would suffer not irreparable harm in the absence of a preliminary injunction, and that the equities do not balance in favor of the defendants [sic], provided defendants have constructed and are operating the [Project] in compliance with appropriate structural and other safety standards.”

In an effort to enforce social distancing and slow the spread of the coronavirus, many cities and states across the nation have adopted emergency orders mandating that restaurants, including fast-food chains, shut down their dine-in facilities.  Not surprisingly, these new mandates resulted in a precipitous loss of business and have caused many restaurants to adjust their operations to provide take-out and delivery service.  However, fast-food restaurants with drive-thru windows are not experiencing the same loss of business, and many are actually thriving.  Since having a drive-thru window may be a fast-food restaurant’s best chance at survival in the world of social distancing, it may be good time for local governments to ease the restrictions on drive-thrus.

The origin of the drive-thru restaurant has long been disputed, but most people recognize California’s Pig Stand No. 21 as having the nation’s first drive-thru window in 1931.  However, the success of the drive-thru can be attributed to In-N-Out Burger, which opened its first restaurant in Baldwin Park, California in 1948.  In-N-Out’s novel design involved a 100 square foot building with no inside seating or parking.  Customers would drive up to a window and place their orders using a two-way intercom.  Despite In-N-Out’s success as a drive-thru, other fast-food restaurants were slow to follow suit.  In 1951, Jack in the Box opened its own drive-thru-only restaurant in San Diego.  McDonald’s first restaurant opened in 1948, but it did not incorporate a drive-thru window into its operations until 1975.

What began nearly 90 years ago as a convenience that capitalized on the growing popularity of the automobile, and was slow to catch on, is now proving to be an economic lifeline for fast-food restaurants in the age of the coronavirus.  The drive-thru option is viewed by many as a safe way of purchasing a meal, especially for the elderly and other high-risk groups, because it ensures social distancing and reduces the number of touchpoints.  In fact, many people have started treating drive-thru restaurants like food markets, making fewer trips but placing larger orders.  Wendy’s recently reported that approximately 90% of all sales are now made at the drive-thru window, compared with about two-thirds before the pandemic erupted.  Unfortunately, many restaurants without drive-thrus have been forced to close during the lock-down, and some will likely not reopen.

Despite the importance of drive-thru windows to a fast-food restaurant, and their wide-spread popularity with customers, drive-thrus have never been fully accepted as an accessory use in many communities on Long Island and elsewhere.  In fact, many Long Island communities loathe drive-thrus and either prohibit them or subject them to greater scrutiny than other components of a restaurant use.  For instance, in the Town of Southold’s Hamlet Business (HB) District, fast-food restaurants are permitted by special exception from the Board of Appeals, but “[t]here shall be no counter serving outdoor traffic via a drive-in, drive-through, drive-up, drive-by or walk-up window or door.”  In the Town of Islip, fast-food restaurants with drive-thru windows are prohibited in business districts where fast-food restaurants without drive-thru windows are permitted with a special permit from the Planning Board.  In other parts of the country, there is a movement to ban the construction of drive-thru windows in an attempt to curb vehicle emissions, reduce litter, improve pedestrian safety and walkability, and even as a way to help fight obesity.

From the lessons learned in the wake of the coronavirus, perhaps now is the time for municipalities to become less critical and more accepting of drive-thru windows.  The prevalence of fast-food restaurants with drive-thru windows strongly suggests that this amenity should be treated as a permitted customary and incidental accessory use to a fast-food restaurant.  Of course, drive-thrus need queuing lanes which require more land area and can present potential internal traffic circulation conflicts.  Therefore, it is reasonable for a municipality to require a greater minimum lot area for a fast-food restaurant with a drive-thru, and to subject a restaurant proposal to site plan review.  However, prohibiting or restricting drive-thrus because the added convenience may attract more customers and create additional traffic on the surrounding roads is tantamount to penalizing a business for its success.

As local operators of fast-food restaurants struggle to stay in business during the pandemic, and restaurant employees worry about losing their jobs, hopefully local governments will recognize that drive-thru windows are essential to the success of a fast-food restaurant.  They should then amend their zoning regulations to be more accepting of drive-thru windows, which are an amenity that the public wants and restaurants need . . . now more than ever.

In Matter of Pittsford Canalside Props., LLC v Village of Pittsford Zoning Bd. of Appeals, et al., the Fourth Department held that settlement correspondence between a development firm, Pittsford Canalside Properties, LLC (“PCP” or “Petitioner”), and the Village of Pittsford Architectural Preservation and Review Board (the “ARB”), was not an enforceable settlement agreement.

PCP owned property located within the Village of Pittsford (the “Village”), on which it sought “to construct a multiple-dwelling building community.”  In 2014, PCP unsuccessfully applied to the ARB for a certificate of approval for its proposed construction.  After the ARB issued its denial, the parties engaged in settlement discussions concerning various issues, including the project’s compliance with certain provisions of the Village Code.  These settlement discussions were evidenced by “correspondences and enclosures” exchanged between the parties (the “letters”).  However, the agreed upon terms were never memorialized into a formal settlement document.  When the ARB subsequently refused to issue a certificate of approval, PCP brought an Article 78 proceeding seeking to annul the ARB’s denial.  In support of its petition, PCP argued that the terms of the letters constituted an enforceable settlement agreement.

Following the lower court’s first order directing the ARB to reconsider Petitioner’s application in accordance with the terms of the letters, the ARB again refused to issue a certificate of approval.  Thereafter, the lower court issued a second order directing the ARB to issue Petitioner a certificate of approval, “subject to” the ARB’s normal review process.  The ARB and other interested parties appealed.

Upon appeal, the Fourth Department reversed, holding that the letters did not constitute an enforceable settlement agreement.  Citing cases from the Second and Third Departments, the Court stated that “‘settlement-related writings . . . will not be found to have created a binding agreement if they expressly anticipate a subsequent writing that is to officially memorialize the existence of a settlement agreement and set forth all of its material terms’ (Matter of George W. & Dacie Clements Agric. Research Inst., Inc. v Green, 130 AD3d 1422, 1423-1424 [3d Dept 2015]; see Little v County of Nassau, 148 AD3d 797, 798 [2d Dept 2017][; see also CPLR § 2104]).”  Because the letters exchanged between the parties here “did not contain all the material terms of the settlement,” they were nothing more than “an agreement to agree.”  Any formal settlement was still conditioned upon the ARB’s review of newly submitted documents by Petitioner.  Further, the Court held that the lower court’s directives to the ARB as to what it could or could not consider in rendering its determination were “impermissible intrusions into [the ARB’s] administrative domain,” which should be afforded a broad degree of deference.

When engaging in settlement discussions with administrative agencies (or with any adversary), be aware that no settlement agreement is enforceable unless it contains all material terms in a memorialized writing.  Informal discussions or communications will not suffice.

When deciding an area variance application, a zoning board may consider the proposed use of the property and the purpose in seeking the variance. However, the zoning board cannot fail to account for the five-factor test mandated by statute (see General City Law § 81-b[4][b][i]-[v]; Town Law § 267-b[3][b]; Village Law § 7-712-b[3][b]) and typically included within the respective municipal code or local law.

Last month, the Appellate Division, Third Department, reaffirmed these principles in 209 Hudson St., LLC v Ithaca Bd. of Zoning Appeals, 2020 NY Slip Op 02311 [3d Dept 2020]. In 2017, the petitioner purchased a single lot improved with one house situated within the City of Ithaca (“Ithaca”). The lot was affected by a preexisting side-yard deficiency. The petitioner applied to subdivide the parcel into two lots in furtherance of its development plans, which included retaining the existing home on one lot and constructing a multi-family dwelling on the other. In connection with its project, the petitioner required an area variance from the side-yard setback requirement and sought the same from the Ithaca Board of Zoning Appeals (“Ithaca BZA”). After several public hearings, the Ithaca BZA denied the application, and the petitioner challenged the denial by commencing an Article 78 proceeding in the Supreme Court, Tompkins County. In March 2019, the Supreme Court granted the petition and annulled the denial, the Ithaca BZA appealed, and the Appellate Division affirmed.

The Appellate Division’s decision sets forth the well-known statutory standard by which zoning boards determine whether to grant or deny an area variance, i.e. weighing the benefits to the applicant if granted against the detriment to the health, safety and welfare of the neighborhood or community if granted. In weighing these considerations, zoning boards must consider the five factors: (i) undesirable neighborhood change or detriment to nearby properties; (ii) whether the benefit can be achieved by some other feasible method; (iii) substantiality; (iv) adverse environmental impacts or effects; and (v) self-created hardship. Courts may only set aside a zoning board determination if the board “acted illegally or arbitrarily, or abused its discretion, or . . . merely succumbed to generalized community pressure.”

While the Ithaca BZA was not precluded from considering the petitioner’s proposed use of the property and purpose in seeking the area variance, and while it was entitled to factor the construction of the multifamily dwelling into its determination, the Ithaca BZA failed to set forth a rational basis based upon examination of the five factors. Specifically, the “[Ithaca BZA’s] consideration of the requisite factors . . . rested primarily on the opposing comments provided by those individuals living in the neighborhood,” where the record contained comments from individuals both in favor of and against the petitioner’s application. Moreover, an environmental review of the project concluded there would be no significant impacts to aesthetic or historic resources, the air, land, drainage or open space area; the Ithaca’s Planning Board issued an equivocal opinion about the petitioner’s project; and, the petitioner’s proposed use was a permitted use. The Appellate Division concluded: “Given that the views of the community in opposition to petitioner’s request by itself does not suffice to deny a variance, respondent’s determination lacks a rational basis.”

The Appellate Division’s opinion in 209 Hudson St., LLC reemphasizes that zoning boards may consider matters not directly related to the deficiency or variance request in reaching a determination, but must proffer a rational basis upon an examination of the five factors.

In the land use and zoning arena, discussion of article 78 proceedings is commonplace. They are, after all, the primary mechanism for challenging decisions on the full litany of land use applications (i.e. subdivisions, site plans, variances, special permits, etc.). An aggrieved party seeking to overturn a board’s decision is given a window of time in which to seek judicial review of the board’s process. If the reviewing court finds the board’s decision to be arbitrary, capricious and/or an abuse of discretion, or made without lawful procedure, the court will declare the decision null and void. See N.Y. C.P.L.R. § 7803 (McKinney’s). The ability to seek judicial review of a land use decision through the article 78 process is available in virtually all cases, except perhaps for one.

Unlike the other land use approvals mentioned above, an applicant’s request for a change of zone for their property or for a beneficial amendment to an existing zoning ordinance may be rejected out of hand without any consideration. Moreover, summary rejection of such requests is not subject to judicial review through an article 78 proceeding. The reason zoning amendments are treated differently is borne from the fact that zoning ordinances are part of a municipality’s local code, and as such, are subject to change solely through local legislative action. See Town Law §§ 261, 265 (McKinney’s); Village Law §§ 7-700, 7-708 (McKinney’s) (granting town boards and village boards of trustees, respectively, exclusive authority to adopt and amend zoning regulations within their municipal boundaries).

The Second Department visited upon this issue in its recent decision in Matter of Hampshire Recreation LLC v Village of Mamaroneck, ___ AD3d __ (Mar. 25, 2020). In Hampshire Recreation, the petitioners filed two applications requesting that the respondent village board of trustees (the local legislative body) change the zoning on certain real property in the village from its existing designation to “Open Space/Residential Community District.” The village board rejected and refused to consider either application. After being rejected a second time, the petitioners filed a hybrid article 78 proceeding through which they sought (among other relief) an order compelling the village board to consider their request.

In response to petitioners’ challenge, the village respondents filed a motion seeking dismissal of the petitioners’ demand for compulsory review of the zone change application. The lower court denied the motion, leading to respondents’ appeal. On appeal, the Second Department issued a brief and to-the-point opinion overturning the lower court and dismissing the petitioners’ demand for consideration of their zone change application. The Court wrote:

The amendment of a zoning ordinance is a purely legislative function. (Matter of Wolff v Town/Village of Harrison, 30 AD3d 432, 433; see Matter of Neddo v Schrade, 270 NY 97, 103; see also Matter of Southern Dutchess Country Club v Town Bd. of Town of Fishkill, 25 AD2d 866). The Village Board is vested with discretion to amend its zoning ordinance, and it is not required to consider and vote upon every application for a zoning change. Thus, in the present case, the Village Board’s determinations not to consider the plaintiffs’/petitioners’ applications were a legislative function not subject to review under CPLR article 78. ____AD3d ____ at *2 (internal citations and quotations omitted).

The Court’s decision in Hampshire Recreation is consistent with a number of the court’s prior holdings on this same issue. See e.g. Structural Tech., Inc. v Foley, 56 AD3d 677, 678 (2d Dept 2008); Soc’y of New York Hosp. v Del Vecchio, 123 AD2d 384 (2d Dept 1986), aff’d, 70 NY2d 634 (1987); Norman v Town Bd. of Town of Orangetown, 118 AD2d 839 (2d Dept 1986). A local legislative body’s prerogative to summarily reject applications seeking a change of zone and/or zoning amendment presents a unique obstacle for any project that does not fit within the existing zoning classification on the project site. Such applications may be dead right out of the gate, if the local legislative body–whether it be a town board or village board of trustees–has no interest in entertaining a zoning change and/or zoning amendment. It should be noted, however, that where a local legislative body does consider a decide zone change and/or zoning amendment application, that body’s decision is then subject to article 78 review. See e.g. Greenport Group LLC v Town Bd of the Town of Southold, 167 AD3d 575 (2d Dept 2018) (challenging the town board’s decision to change petitioners’ property to low-density residential).

A copy of the Second Department’s decision in Hampshire Recreation can be accessed by clicking the following link: Mtr of Hampshire Rec v Mamaroneck. If you have any questions or comments on this post, please feel free to contact me.

As many of us continue to cocoon inside our homes during the COVID-19 pandemic, avoiding supermarkets and anyone else for that matter, Long Island farms are seeing a resurgence in interest for locally grown produce and agricultural products.  In some ways farmers are sometimes better off than town and city dwellers., because farmers can produce much of their own food while those in urban and suburban environments cannot.  What better way to practice social distancing and, at the same time, obtain fresh fruits and vegetables than to shop at your local farm stand?

Unfortunately, many farms on Long Island and throughout New York State remain vulnerable to onerous zoning restrictions as municipalities respond to the often vocal concerns of suburban creep and development conflict. Typically, farms operate several discrete but interdependent land uses which may include barns, farm worker housing, garages,  retail markets, manure or compost storage facilities, and greenhouses, to name a few.

As it seeks to survive, however, the rapidly changing nature of the agricultural industry does not always comply with the comprehensive planning processes of most municipalities.  Many times, the agricultural uses predate the zoning codes or their amendments.  These situations can result in the application of existing land use regulations giving rise to potentially unreasonable restrictions to farms and farm practices.  Thus, many zoning codes are unable or unwilling to allow farm  operations to continue without strict compliance.

Agricultural Districts-A First Line of Defense

Article XIV, Section 4 of New York’s Constitution protects and supports farm business and agricultural production.  The Agricultural and Markets Law (“AML”) was enacted in 1971 to implement that policy.  In particular, the AML provides protection for farm businesses in State-certified agricultural districts.  Agricultural Districts protect farmland from the adverse impact of non-farmland development.  The purpose of an agricultural district is to encourage the development and improvement of agricultural land along with the production of food and other agricultural products.

Each County in New York, manages the creation or modification of its Agricultural District. Farm owners seeking the protection of an Agricultural District submit their application to the County Agricultural and Farmland Protection Board.  Typically, this board meets once a year to review and recommend Agricultural District inclusion applications.  Approved applications are placed before the County Legislature.  After the County submits a resolution approving or modifying a district, the Commissioner of Agriculture and Markets certifies that a district meets the purpose and intent of the Agricultural District Law.

There are 210 State certified Agricultural Districts in 53 of New York’s 62 Counties. These districts capture about 8.8 million acres of land, including over 6.3 million farmed acres on 25,600 farms.

 

AML-305-a Review- A Powerful Tool

Local governments may run afoul of the intent of the AML by limiting the type and intensity of agricultural uses in their communities and by narrowly defining “farm” or “agricultural activity.”  This is sometimes problematic even in municipalities with a significant base of large, “production” level farming operations.  AML Section 305-a (1)(a) provides:

“Local governments, when exercising their powers to enact and administer comprehensive plans and local laws, ordinances, rules or regulations, shall exercise these powers in such manner as may realize the policy and goals set forth in this article, and shall not unreasonably restrict or regulate farm operations within agricultural districts in contravention of the purposes of this article unless it can be shown that the public health or safety is threatened.”

Where a municipality seeks to administer a zoning ordinance in a manner that is in conflict with the policy objectives of AML by, for example, denying a building permit (pursuant to its zoning code) for mobile homes to be used to house migrant farm workers pursuant to its zoning code—the zoning ordinance is superseded by AML § 305–a (1)(a).

Section 305-a only applies to farm operations in an Agricultural District.  Therefore, it remains critical for a farm operation to be placed in an Agricultural District in order to obtain this protection of the statute.

These are challenging and unprecedented times. To ensure the health and welfare of ourselves and our farms, it is important to provide them with the flexibility as future circumstances warrant.  Please remember to support your local farms – at a distance.

In response to the Coronavirus outbreak, many New York City residents have sought refuge from the epicenter of the disease by travelling to the East End of Long Island. On March 27, 2020, several East End leaders, including leaders from the Town of Southampton, Town of Southold, Town of Riverhead, Village of Westhampton Beach, Village of North Haven, Village of Sagaponack, Shinnecock Nation, and Village of Greenport sent a letter to Governor Cuomo (Supervisor-Mayor-Letter-to-Cuomo-on-coronavirus-3-20) seeking limitations on non-essential travel to the East End from the New York metropolitan area. Specifically, the letter stated,

“Local leaders across New York State are doing everything they can to slow the incidence of new cases of COVID-19. The New York City area is considered a “hot spot” for the virus due to the high incident rate and the number of new cases. The NY City area now has approximately 1/3 of all the confirmed coronavirus cases in the USA. With “non-essential” employees directed to stay home, our East End communities are seeing a surge in population as seasonal residents are seeking to leave the NY metropolitan area and spend this period of “social distancing” in their summer home communities. As leaders of East End Towns, Villages and Tribal Government, we are growing increasingly concerned with our local ability to manage the added strain to our local healthcare system, food markets and other essential businesses needed to maintain the health and safety of our residents.”

On March 28, 2020, the Centers for Disease Control and Prevention (CDC) issued a travel advisory to residents of New York, New Jersey and Connecticut stating, “due to extensive community transmission of COVID-19 in the area, CDC urges residents of New York, New Jersey, and Connecticut to refrain from non-essential travel for 14 days effective immediately.”

The letter from East End leaders further stated, “we are hopeful that most people will follow this self-quarantine recommendation; yet we remain concerned about our ability to manage a significant and sudden increase in population, and the demand for additional health, public safety and governmental services.”

With no formal response issued from the Governor, the Town of Southampton, in a press release dated April 7, 2020, announced it will be initiating a “crackdown” on prohibited, short-term rentals for the month of April. Referencing websites such as Airbnb, VRBO and Homeaway, the Town stated, “many properties are renting by the night or for just the weekend at a time when the community is growing increasingly concerned about new people entering the community from the NY Metropolitan area, the nation’s epicenter for the virus.”

Southampton Town Code §270-9(C) prohibits transient rentals, except in the case where “a determination has been made by the Town Board that local transient housing capacity is likely to be inadequate during a regionally significant event…” For example, the Town Board allowed short term rentals during the U.S. Open golf tournament held at Shinnecock Golf Club in June of 2018. The Code defines a “transient” as “a rental period of 14 days or less.”

In this instance, the Town of Southampton is seeking to protect the health and safety of its citizens by enforcing the existing law. Having declared the Ordinance Enforcement Division essential, the Town seeks to “crackdown on short-term rentals occurring in April during the period of the State emergency order” which runs through April 29, 2020.

Town Code §270-19(A) sets forth the penalties for violating the rental law punishable by fines as high as $15,000 or imprisonment not to exceed a period of six months, or both. Town Code §270-19(A)(3). Notably, Town Code §270-19(B) provides the authority for the Town to potentially collect substantially more than the fines listed in the Code, stating, “additionally, in lieu of imposing the fines authorized in § 270-19A, in accordance with Penal Law § 80.05(5), the court may sentence the defendant(s) to pay an amount, fixed by the court, no less than the applicable minimum statutory fine permitted under § 270-19A nor more than double the amount of the rent collected over the term of the occupancy.”

 

Recent executive and administrative orders carrying-out COVID-19 mitigation and public safety measures will impact litigation within the Article 78 context, specifically the deadlines for commencing a proceeding to challenge municipal determinations. This impact is significant given the short statutes of limitations periods typical to land use litigation. Governor Andrew Cuomo’s Executive Order 202.8 (“Executive Order“) “temporarily suspends or modifies” various time-frames dictated by applicable statute, law, rule or regulation; in relevant part: “any specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process or proceeding, as prescribed by the procedural laws of this state, including . . . the civil practice law and rules . . . is hereby tolled from the date of this executive order [March 20, 2020] until April 19, 2020,” i.e. 30 days.

Following the Executive Order, the Hon. Janet DiFiore, Chief Judge of the Court of Appeals, issued Administrative Order 78/20 (“Administrative Order“), which states that “no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters attached.” An action or proceeding is commenced by the filing thereof, and challenges to land use and municipal determinations are not included on the list of essential matters.

Despite the present health crisis and preclusion of court filings in this subject area, municipal boards and agencies may have recently conducted business, and they may continue to conduct business via means that comply with the Open Meetings Law (as modified by Executive Order 202.1) and protect the public health. Thus, boards and agencies may have recently made, and can continue to make, decisions, but challengers are presently prohibited from pursuing judicial appeals of such decisions in the Courts. Analyzing the Executive Order will be critical to understanding the litigation risk from an applicant’s perspective, as well as how a challenger should anticipate dealing with any statute of limitations issues.

Interpreting the Executive Order’s Effects on Statutes of Limitations

The Executive Order is not without ambiguity; it uses verbiage such as “suspend” and “toll,” and each word may have different import.  For example, on the one hand, Black’s Law Dictionary defines “toll” as “to stop the running of; to abate.” Given the definition and the plethora of jurisprudence on the subject, this means that the statute of limitations period is paused for the duration of the tolling period. Put another way, the statute of limitations is extended for the same amount of time that tolling is in effect (because the period is not running during that time). On the other hand, “suspend” means “to interrupt; postpone; defer” or “to temporarily keep a person from exercising a right or privilege.” This could mean that any commencement deadline that falls between March 20th and April 19th will only be deferred until April 19th – and no additional time will be added. That said, “suspend” could also be interpreted to support a pausing or tolling of the time-period.

In addition, the Office of Court Administration issued a statement on its website noting the Executive Order “exten[ded]” statutes of limitation[s],” and the Administrative Order noted that the Executive Order “suspend[ed]” statutes of limitation[s].” This verbiage appears to support a broader interpretation to toll time-frames, as opposed to merely deferring to April 19th. In any event, applicants and litigants should be cautious and prudent, and seek to avoid any pitfalls based upon how the Executive Order is ultimately interpreted or applied.

Applying the Executive Order in the Article 78 Context – Assuming Statutes of Limitations are Tolled

The statute of limitations for challenging a zoning board’s determination is 30 days after the date of filing of that determination with the town or village clerk. The statute of limitations for commencing a proceeding to challenge many other board or agency determinations, e.g. environmental review, is fourth months from when it becomes final and binding. Assuming the Executive Order tolls and extends the statute of limitations, then any statute of limitations expiring during the tolling period is extended for 30 days.

For example, if a zoning board determination was issued and filed on March 1, 2020, then the statute of limitations would ordinarily expire on March 31, 2020. Applying the Executive Order’s tolling, the statute of limitations paused on March 20th, and does not begin to run again until April 19th. By adding 30-days (the tolling period) to what would have been the expiration date (March 31st), the new commencement deadline expires April 30, 2020.

The analysis for board or agency determinations filed and/or final after March 20th differs slightly. In this scenario, the tolling period is shorter because nothing is paused on March 20th; rather, the statute of limitations time-frame is paused on the date of filing and/or finality – when the claim for the challenge accrues. In other words, the tolling period is only the time between the filing and/or finality and April 19th.

For example, if a zoning board determination was issued and filed on March 30, 2020, then the tolling period is from March 30th (when the claim accrues) through April 19th – 20 days. Despite a shorter tolling period, the time to commence will be later because the statute of limitations period only begins to run on April 19th. Thus, an Article 78 proceeding to challenge a zoning board’s determination made and filed on March 30th must be commenced by May 19, 2020 (the full 30-day statute of limitations period, which starts to run on April 19th).

It should also be noted that CPLR Section 306-b plays a vital role in Article 78 litigation, and is also affected by the Executive Order. Section 306-b requires that, where the statute of limitations is four months or less, service of the pleadings shall be made not later than 15 days after the statute of limitations expires. The Executive Order’s impact upon statutes of limitations will have a concomitant affect upon the deadline imposed by Section 306-b.

The public health crisis created by COVID-19 has forced municipal officials statewide to cancel, suspend or postpone previously scheduled public hearings and meetings.  How do public bodies conduct their necessary business during these uncertain times?  Below is a brief analysis and summary of what options are available.

Background

On March 7, 2020, Governor Cuomo issued Executive Order Number 202 declaring a state of emergency for New York.  On March 13, 2020, Governor Cuomo amended this executive order and issued Executive Order Number 202.1 suspending, among other things, the “in-person” requirements of New York’s Open Meetings Law, contained in Article 7 of the Public Officers Law until April 11, 2020 (or unless further extended).  In pertinent part, Executive Order 202.1 states:

Suspension of law allowing the attendance of meetings telephonically or other similar service:

Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed….(emphasis added)

As a result and to keep government operating, local public bodies are now authorized to conduct public meetings without allowing the public “in-person” access.

Three Options for Holding Public Meetings

Pursuant to Executive Order 202.1, public bodies, such as town boards, village boards of trustees, planning boards and zoning boards, now have three temporary options for conducting public meetings without allowing the public to be present at these meetings:

  1. Members of the public body are either physically present or participating via videoconferencing, and the general public is allowed to physically attend the meeting location(s) as is provided for under the Open Meetings Law;
  2. Members of the public body are physically present but the general public is not allowed to physically attend the meeting location; the public must be allowed to view or listen to such meetings and the public body must record and later transcribe such meetings; or
  3. Members of the public body meet via conference call or videoconference, with no in‐person location; the public must be allowed to listen to or view such meetings and the public body must record and later transcribe such meetings.

Analysis

Before discussing these options, it is important to distinguish public hearings from public meetings under New York’s Open Meetings Law.   Section 102(1) of New York’s Open Meeting Law defines a “meeting” as the convening of a public body for the purpose of conducting public business and requires that the “meetings” be open to the public.  It does not, however,  define “public hearing”.  Common practice dictates that a public hearing is a meeting of a public body, at which the public is provided the opportunity to comment.  In fact, many public hearings are required by law for matters, such as the adoption of local laws and for planning boards before they approve subdivision applications.

It has been held that the Open Meetings Law only requires that the meetings of public bodies be open for observation by the public, but does not require that the public be given opportunity to engage in debate.  See, DeSantis v City of Jamestown, 193 Misc.2d 197, [Supreme Court, Chautauqua County 2002].

The question then becomes, does an online video portal or teleconference that offers the opportunity for the public to comment satisfy the in-person requirement of the Open Meetings Law?  Unfortunately, there is no case law on the subject, but the following discussion can be used as a guide.

First Option:  Two-Way-Videoconferencing- Pubic Hearings and Public Meetings

The first option is not new.  In 2000, the Legislature specifically added “videoconferencing” to several provisions of the Open Meetings Law.  Open Meetings Law § 102(1) defines “meeting” as “the official convening of a public body for the purpose of conducting public business, including the use of video conferencing for attendance and participation by the members of the public body” (Open Meetings Law § 102(2)) (emphasis added), and does not distinguish between a “meeting” of a public body and a “hearing” conducted during such meeting.

Confirming that members of the public body need not all be physically in the same room with all members of the public during a board meeting, Open Meetings Law § 103(c) provides: “A public body that uses video conferencing to conduct its meetings shall provide an opportunity for the public to attend, listen and observe at any site at which a member participates” (emphasis added).  See, Peterson v Inc. Village of Saltaire, 77 AD3d 954 [2d Dept 2010].

In Peterson, the Appellate Division upheld a public meeting and hearing held by  the Mayor of the Village and four trustees in a conference room located within an office building in midtown Manhattan. The meeting was simultaneously broadcast by means of a two-way video conference hook-up to the main room on the first floor of the Village Hall.

Thus, participation in meetings by members of the board by electronic means was already permitted under the Open Meetings Law, as long as members and the public were able to be in two-way communication.  This option is not changed by Executive Order 202.1 and only requires that regular minutes be maintained, not a full transcript.  This may be the best options for public bodies with access to such technology.

Second Option:  Public Board Meetings Without the Public Present- May Not Be Applicable for Public Hearings

The second option is new.   Here, members of the public body are physically present in one location; however, there is no “in-person” attendance by the public at that location.  The public body meets together and conducts its business without the public present.  Provisions must be made to allow the public to listen or view the conference call meeting, and transcripts of the meeting must be made available.  This option allows the public body to physically meet, conduct its business while practicing social distancing and allowing the public to observe the meeting but not allowing any public comment.

This option appears best suited to allow public bodies to conduct public meetings for adopting budgets, entering into contracts etc., but does not appear to satisfy the requirements for conducting a public hearing.

Third Option:  Conference Call Public Board Meetings-Without the Public Present – May Not Be Applicable for Public Hearings

The third option is also new and the most socially distancing of all the options.  The public body meets via conference call or videoconferencing, with no in-person location.  The public must be allowed to listen to or view such meetings, and the public body must record and later transcribe such meetings.

This option provides the most fluidity and may best serve public bodies that need to address immediate issues without the need to convene at any one location.

Importantly, Executive Order 202.1 did not suspend any local laws governing public notices or public meetings.  Therefore, municipalities and boards that have adopted local laws establishing meeting protocols may need to relax local requirements.

Finally, Public Officers Law § 104 still requires public bodies to notify the public of the time and place of every meeting. The Open Meetings Law requires notice of every meeting to be:

  1. Conspicuously posted in one or more public locations;
  2. Given to the news media (television, radio and newspaper); and
  3. Conspicuously posted on the village’s website, if it has the ability to do so.

Conclusion

Open Meetings Law § 104(4) provides that if videoconferencing is used to conduct the meeting, the notice of the meeting must indicate that members of the public body will be participating via videoconferencing technology. Additionally, the notice must identify the locations from which the members will be participating and state that the public has the right to attend the meeting at any of the meeting locations.

Be well.

 

NOTE:  This blog post was updated on March 27, 2020 to reflect the new guidance that was issued by New York State Governor Cuomo’s office today relative to construction.

 

Despite the crippling impact that the coronavirus is having on all aspects of our daily lives, many developers are moving ahead with their projects, regardless of how far along they are in the development process.  However, the need to comply with the emergency executive orders issued by Governor Cuomo, and the general concerns for public safety, have made the land use and development process anything but business as usual.  For the time being, the ban on non-essential gatherings of all types has stalled the land use entitlement process for many projects because most local governments have postponed all public hearings.  Many municipal offices remain closed to the public, but building and planning department personnel are processing applications and issuing non-discretionary approvals, such as building permits and certificates of occupancy.

For those applications that require a public hearing prior to approval, local officials are struggling to find ways to comply with the statutory procedural requirements of the New York State Open Meetings Law and, at the same time, protect the public’s health, safety, and welfare.  This tension is illustrated by the Open Meetings Law’s requirement that all meetings of a public body be open to the general public and the Governor’s executive order banning public gatherings.  To address this conflict, Governor Cuomo issued an executive order on March 12, 2020, suspending the Open Meetings Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without allowing the public to be physically present at the meeting.  The order also authorizes public bodies to meet remotely by conference call or similar service.  A public body that prohibits in-person access to its meetings or conducts a meeting remotely by conference call or similar service, must provide the public the ability to view or listen to such meetings and must record and later transcribe such meetings.  Municipalities are currently assessing their technology resources in order to determine the public meeting format they will use during this crisis and are expected to begin holding public hearings in the coming weeks.

Approved projects that are already under construction are also not immune from the impacts of the pandemic.  Many projects have been impacted by the Governor’s “New York State on PAUSE” executive order, which mandated the closing of all non-essential businesses statewide and limited the concentration of individuals outside their homes, except in the case of workers providing essential services.

The guidance issued by the Governor on essential businesses under the executive order lists certain businesses and professions that are exempt from the order’s business closure mandate, including certain types of construction work.  Originally, only “skilled trades, such as electricians and plumbers” and “other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes” were listed as essential construction businesses  in the guidance.  This language prompted many questions from both developers and the construction trades who were uncertain whether their projects or work were essential.  However, as of March 27, 2020, updated guidance provides the following with respect to construction:

  • All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).
  • Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.
  • For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.